United States: How Much Is That Handgun In The Window?

It's not often that we get to blog about gun advertising and
the First (not Second) Amendment. But last month, a district
court in the Eastern District of California ruled that California Penal Code § 26820, which
prohibits a limited category of ads promoting the retail sale of
handguns, was an unconstitutional burden on commercial speech in
violation of the First Amendment. The law was challenged by a
group of retail gun stores in California, some of which had been
cited with violations of the law.

Enacted in 1923, Section 26820 prohibits gun dealers from
displaying a "handgun or imitation handgun, or [a] placard
advertising the sale or other transfer thereof ... in any part of
the premises where it can readily be seen from the outside."
Violation can lead to the loss of a gun dealer's license.
(Cal. Penal Code §§ 26800, 26715(b); Cal. Admin.
Code tit. 11, § 4024.) The photo accompanying this post
shows an example of the type of advertising at issue.

"At the outset, we must determine whether the expression is
protected by the First Amendment. For commercial speech to come
within that provision, it at least must concern lawful activity and
not be misleading. Next, we ask whether the asserted governmental
interest is substantial. If both inquiries yield positive answers,
we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more
extensive than is necessary to serve that interest."

The parties didn't dispute that the sale of handguns is a
legal activity (the first prong), that the advertising in question
was not misleading (also the first prong), or that California's
proffered interests – reducing handgun suicide and handgun
crime – were substantial (the second prong). The third
and fourth prongs, however, were the hotly disputed.
Ultimately, the court sided with the gun dealers, holding
that government not only had failed to demonstrate that the law
directly advanced its interests (the third prong), but it also had
failed to prove that the law was not more extensive than necessary
to further those interests (the fourth prong).

To support the law, the state argued that (1) the law inhibited
handgun purchases by people with "impulsive personality
traits" and (2) that people with impulsive personality traits,
as a group, are more likely to commit suicide and crimes that other
members of the population. Describing this as "a highly
paternalistic approach to limiting speech," the court held
that that California "may not restrict speech that persuades
adults, who are neither criminals nor suffer from mental illness,
from purchasing a legal and constitutionally protected product,
merely because it distrusts their personality trait and the
decisions that personality trait may lead them to make later down
the road."

Other key points made by the court to support its holding
include:

The court found that Section 26820 was "fatally
underinclusive" because it restricted only a narrow category
of ads. The court noted that the law did not prohibit a store
from erecting "a large neon sign reading 'GUNS GUNS
GUNS' or a 15-foot depiction of a modern sporting rifle."
Nor did it prohibit hand gun ads in print, on billboards, or
on the radio. According to the court, this "gravely
diminishes the credibility of the Government's rationale"
that the law would further its asserted interests.

Nor was the court persuaded by the testimony of a government
expert who had opined that "it is reasonable to conclude"
that ads prohibited by the statute "contribute[] in a positive
way to the impulsive purchase of handguns." The court
found that this expert's opinion was based on general studies
about impulse purchasing by consumers, not studies specifically
designed to measure impulse purchases of firearms. Moreover,
according to the court, these studies didn't examine the
potential for signs, like those prohibited by Section 26820, to
increase gun purchases by the impulsive.

Another government expert cited studies and testified that
"[s]uicidal behavior is generally impulsive," that
"70% of suicide attempters act less than one hour after
deciding to kill themselves" and that the most relevant factor
in suicide is access to firearms by a person (including at home).
The plaintiffs didn't challenge these conclusions.
However, they argued, and the court agreed, that the
government had failed to demonstrate "the link that impulsive
handgun purchases result in impulsive handgun suicides."
The court found that this expert's testimony supported,
at best, "the general notion that fewer handguns means less
handgun suicide, rather than whether restricting impulsive handgun
purchases would reduce handgun suicides."

Finally, the court disputed that the law was not more extensive
than necessary. The court cited other existing legislation
that more narrowly furthers the government's interests,
including laws that impose a ten-day waiting period before a
purchaser can receive a gun. limit purchasers to one handgun
purchase within a thirty-day period, and require gun purchasers to
complete a firearm safety certificate program.

It is expected that California will appeal this ruling.

California "may not restrict speech that persuades adults,
who are neither criminals nor suffer from mental illness, from
purchasing a legal and constitutionally protected product, merely
because it distrusts their personality trait and the decisions that
personality trait may lead them to make later down the
road."

This alert provides general coverage of its subject area. We
provide it with the understanding that Frankfurt Kurnit Klein &
Selz is not engaged herein in rendering legal advice, and shall not
be liable for any damages resulting from any error, inaccuracy, or
omission. Our attorneys practice law only in jurisdictions in which
they are properly authorized to do so. We do not seek to represent
clients in other jurisdictions.

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